D RAJAPPA Vs. SOMAPPA

JUDGEMENT

(1.) This is the defendant's second appeal filed under Section 100 of Code of Civil Procedure from the judgment and decree dated 6-8-1984 passed by Sri. K.R. Prasad Rao, the Principal Civil Judge, Kolar in Regular Civil Appeal No. 26 of 1983, whereby the learned lower Appellate Court viz., the learned Principal Civil Judge allowed the plaintiffs appeal and set aside the judgment and decree dated 29-9-1983 passed by the Principal Munsiff, Kolar in Original Suit No. 241 of 1979 and decreed the plaintiffs claim for declaration and injunction. Before I proceed further I may mention it here that although this matter had been listed on three days and appellant's Counsel argued and heard the matter and waited for the respondent's Counsel but none appeared to argue the matter on behalf of the respondent. After conclusion of the arguments for the learned Counsel for appellants I proceeded to decide the appeal in absence of respondent's Counsel.

(2.) The facts of the case in brief are that plaintiff/respondentclaimed the decree for permanent injunction restraining the defendants/appellants from interfering with peaceful possession and enjoyment of the property in dispute as described in the schedule attached to the plaint. The plaintiffs/respondent's allegation is that the plaintiff has been owner in possession and enjoyment of the property in dispute i.e. site in dispute as mentioned in the schedule attached to the plaint for several years and his name has been entered in the assessment register and house tax extract of 1961-62 relating to the Shapur Group Panchayat in respect of the said site and that according to the plaintiff the same has been confirmed by the panchayat Authorities. The plaintiff claimed to be in possession and enjoyment of the said site by making use of the same for tethering cattle and for having put up a sheep-pen. The plaintiff alleged that the defendants without any right, title and interest in the property in dispute threatened and made unlawful and illegal attempts to dispossess the plaintiff from the site in dispute. According the plaintiff the attempts were so made on 10-6-1979, giving the cause for filing the suit.

(3.) The plaintiff's claim has been denied by the defendants viz.,the present appellants who filed written statement denying the plaintiffs title as well as denying the plaintiffs possession over the site in dispute. According to the defendants the site was not granted at all to the plaintiff. The defendant's case is that the plaintiff in collusion with the previous panchayat people has got documents concocted and created. According to the defendant's their case is that there is no panchayat land bearing No. 74 said to have been granted; the "sites" bearing numbers upto No. 73 alone were formed and granted by the Village Panchayat. It was also stated that the Village Panchayat was a necessary party and suit was bad and not maintainable for non-joinder as according to the defendants the site in dispute belongs to the Village Panchayat. The defendants further recited that on 9-10-1979 the plaintiff made an application to the Village Panchayat for grant of a site at Sirayamandra Village and no final decision has been taken on his application. According to the defendant's the land in dispute viz., the site in dispute is actually in possession and enjoyment of defendants 2 and 3 viz., Yelachappanavara Muneppa and Hanumanthappa and they are tethering cattle thereon and also put up a sheep-pen.